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tv   Key Capitol Hill Hearings  CSPAN  November 6, 2013 12:30am-2:31am EST

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>> it's people who prosper and suffer. when a in addition commits men and women to war, it is people who make the decision to go to war. it is people who fight and die in war. i began my discussion today by talking about the importance of long term thinking. america's future is always dependent on the balance of strategic thinking, decisive actions, and belief in our purpose. perhaps no one more em builded that purpose than president dwight d. eisenhower. it's appropriate to end my thoughts this morning with app excerpt from his farewell address in 1961 that speaks to the challenges, exact
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challenges, facing us today in this very different world. he said, "america's leadership and prestige depend not merely upon our unmatched material progress, riches, and military strength, but on how we use our power in the interest of world peace and human betterment. throughout america's adventure in free government, such basic purposes had been to keep the peace, to foster progress in human achievement, and to enhance liberty, dignity, and integrity among peoples and among nations. to strive for less would be unworthy of a free and religious people." very, very wise words. now, the challenges that face our world, our nation, and all of its institutions are great, so is our unprecedented capacity
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to deal with those problems. never in the history of man has a nation possessed a world possessed so much capacity to deal with these problems. we must not fear change, but rather embrace it. to vive for less would be unworthy of our character and our purpose, and we would fail future generations. that is the not who we are. that is not our heritage. that is not our destiny. thank you. [applause]
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>> unlike ike who grew up in a poor family of all sons, mamie was from a well to do family of all daughters. she went to a finishing school, and we have her report card from denver, colorado. while she got a b in english, she actually got a c-minus in european history. who knew in later years as a military wife and future first lady she would have so much to do with european history. she loves charm, and early on, west point football charm showing the army and navy scores in 1913 and 1914 when ike was coach for the army football team. as a military wife, she took
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pride in creating a home for ike in each of the 36 different places that they lived throughout their marriage. >> watch our program on first lady mamie eisenhower at or saturday on c-span at 7 p.m. eastern, and the series continues live monday at we look at first lady jack lin kennedy. >> the privacy and civil liberties oversight board had a public meeting monday on possible changes to the n sai's data collection and surveillance program. witnesses including fisa court judge carr and house intelligence committee ranking member and senator ceo harmin. this is an hour and ten minutes. [inaudible conversations] >> good afternoon. we're now going to start the first afternoon session and the
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topic, again, is the foreign intelligence court. we're pleased to have, as witnesses, james baker, formally with the department of justice, office of intelligence, and policy review. judge james, federal district judge in the northern district of ohio and formally a foreclosure isk judge from 2002-2008. mark, a founder of lc and former doj attorney at the computer crime and intellectual property section. i understand that each of you have a brief prepared remarks, so, please, go ahead, and afterwards we'll have panel round of questioning, five minutes, this time for each of the board members, but please go ahead. >> thank you very much. i'd like to thank the board for inviting me back. it's really an honor to be here and an hon tore to be able to discuss these issues in this setting. i appreciate the opportunity. i just have a couple quick comments, really.
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the focus of our discussion today is on section 702 and section 215 of the usa patriot act, and i say while these are very important stach -- statutorily authorized, warrantless surveillance programs involving communications related data with respect to many americans, they are really only part of the story, and i think that was discussed this morning in the panel that i was able to attend. in particular, as the panel is aware, the government conducts surveillance activities using a number of authorities including outside the united states under executive order 12333, and i submit to the backward that as you're evaluating the issues, you think broadly about them because they do -- the privacy issues that you're confronting pop up in a number of contexts, and as another example, with respect to telephone records,
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telephone calling records, there are several ways, eight to ten by my count sometimes depending how you count them, eight to ten ways the government can go about obtaining the same types of records you're talking about when you talk about 2 is a. 2 is -- 215 is critically important, but it's just a part of the story. think bredly. the last time i was here, i urge you to think broadly because the topic that has not been discussed very much is cyber, and the need to think about the critical privacy issues and data collection issues as they pertain not only to counter terrorism and foreign intelligence, but to cyber. i'm happy to talk about that at length if interested. the other quick point i make at the outset has to do with the foreign intelligence surveillance court that i work closely with with for many years at the department of justice. i can elaborate at length if you want me to, but in many ways
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notwithstanding what's been written in the press, the fisa court is a national treasure. it's done its job in exemplary fashion during wartime. that's not been said enough, and so i just wanted to say that at this point. however, the fisa court is not a type of super inspector general over the whole apparatus that we have to collect intelligence that's, you know, multibillion dollar enterprises conducted by thousands of people. that is not what the court does, and i think with respect to 702 and 215, i would submit that we reach the outer limits of what you reasonably expect a court to do in the setting, and i'm happy to discuss that at length. at the end of the day, what comes to my mind, it's the responsibility of the president, the executive branch, and congress to conduct management, oversight, and control of these activities. i'm happy to talk about transparency and the issue of whether we're going to have an advocate or something like that
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in the questions. thank you very much. >> thank you, mr. baker, for coming back with us again. judge car. >> yes, like jim baker with whom i worked with for five or six years, i can't recall if you left before i did or not, jim, but amen. i'm pleased to be here and be part of the conversation. what comes about that you may be aware that as a result of a op-ed that i happened to publish on the 23rd of january, i think it was, maybe what i consider to be a modest proposal which i'll repeat this afternoon to improve the -- both, i think the processing of certain applications before the court, and i hope as well, perhaps, enhance public confidence in some of the decisions that the court reaches. that proposal's simply that congress gives the fisa court judges either discretion or perhaps direct them to ob tape
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the services of outside independent counsel when the court is presented with something that's new and novel, and this would happen, very rare occasions. what i want to emphasize is how infrequently this kind of representation would be necessary. the vast majority of fisa applications are simply fact based. there's a low probable cause standard, affiliated working for a foreign based government or foreign based terrorism organization. that's the probable cause shown. once it's made, you issue the ore. you do not have discussion to second guess the reasons. it's like a search warrant or title 3 order, but on infrequent occasion, i felt as a sitting judge when jim baker, and he was the one who would do it, would come to me and say, judge, you
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better pay special attention to paragraphs 62 to 73 because this is new technique. there's something new or unusual about this that takes it outside the ordinary, really quite straightforward and typical, routine fisa application. the government would do that. it would do it for good reason because it knew that we had to trust its integrity in order for us to function effectively and have confidence in what they were saying to us. that requirement became codified in the first draft in 2008 of what -- of the foreign surveillance court rule, and the government is required by those rules in that sort of situation to call that circumstance to the court's attention. i'm sure it does so. that seems to me to be -- would be a good trigger point for a judge either to exercise his or her discretion or perhaps for congress to mandate when that notice, rule 1 # 1 notice is
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given, and the court calls upon, one, what i envision to be a small codray of precleared attorneys, probably in the washington area, probably with some sort of experience in the area -- i would certainly hope so, so they wouldn't have to spend a lot of time learning how the wheel turns, as it were -- but that individual comes in in that circumstance when called upon to do so to represent -- and i was asked, who's the client -- to represent the interest of the constitution, the fourth of amendment, and the rights of all of us to communications privacy -- but it'd be very infrequent occasion when this would be necessary, and, again, i want to underscore that, and i think that the benefits to the kurt and to the process would be quite substantial. first of all, we judges are accustomed to how we work in the adversary process, and what do you say, what do you say, that's how we usually make decisions,
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and most of what we do. secondly, it would -- when the government wins, close quote, when a judge says, yes, you can do this or that, it has no interest in appealing. it does not need to get that order reviewed. it's not imoing to go to the fisa court for review and say, by the way, we won, but nonetheless, look at it; however, in that circumstance, limited to when it is a new or novel technique or some other aspect where the court has called upon an individual outside counsel, then that individual would be able to appeal and secure appellate review, which does not presently exist, and the appellate review, i think, certainly in my day-to-day functions as an ordinary article three judge is very important. i get reversed. there are times when i get reversed, and i say, my gosh, i was wrong, thank goodness they
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were there. this occurred to me since i first wrote that op-ed piece, it seems to me that this outside counsel -- i have not got a name for it yet, could also perform an important role when there's an issue, a troublesome issue of noncompliance. again, the government is required to report instances of noncompliance. it did so when i was there in every one of those instances, fairly trivial, not troublesome; however, the former presiding judge, a lengthy opinion released this summer suggests there may be instances where reports of noncompliance are the sort that once again as a judge of the foreign intelligence surveillance court, it might be useful to have the discretion to reach out to somebody to assist the court and understand the issues and ensuring that what went wrong has been fixed and is not having any serious cause to it or if it does.
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see that that gets fixed, and at some point, i hope to be able to talk about the role of the legal advisers because their work for the court is absolutely crucial. i don't think it's well understood by anybody outside the court and the role they play is extremely important, and i hope that, perhaps, to have a humanist talk about them and their role and where it fits in everything, so one time thing, jim eluded to this, but it's my view that we should all keep in mind when talking about foreign intelligence collection, foreign -- the function of the agencies charged with that responsibility, and then the activity of the judiciary, a limited activity under the foreign intelligence surveillance act, that if you look at article ii, and, of course, that's the article and constitution that establishes the office of the president and
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gives the president his responsibilities and authority, you don't find the word "judge" in there at all. now, this is a very unique circumstance where the third branch actually plays a role in overseeing the activities of the executive in app area in which the executive constitutionally has exclusive responsibility, the conduct of our foreign affairs and protecting us against foreign dangers and threats so i look forward to your questions, and, again, it's a real honor and pleasure to be here. thank you. >> thank you for inviting me as well. especially thank you for seating me on the same side of the table of judge carr. same side i've been on anything of a former fisa judge. as the court knows over the past 13 years, i helped dozen clients respond to government demands for data under criminal cases and fisa. clients range from small app providers to yahoo and apple, and although my representation
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of yahoo before the fisa court is why i'm here today, the comments are my own and not on behalf of any client. that said, my client work gave me a view into the position of internet service providers who receive demands under fisa and i see two aspects of the process that i believe are inconsistent with the core principles of the legal system. first, the overbroad cloak of secrecy that applies to everything fisa related and the lack of a true adversary process. together, these issues pose difficulties for providers and by extension, their users in the public. to begin with, when providers are served with classified fisa orders or directives, they receive an unentirely unfamiliar process with little specifics to review for a brief period of time before they hand it back to the government, yet based on that mere look, they are asked to disclose the most private user communications they carry. due to the secrecy, providers have few places to turn for advice.
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while some have counsel to determine if a request is routine of the type that judge carr referenced or novel, providers with limited resources struggle to understand or react accordingly to the process they get. providers are the only parties with the statutory authority and the opportunity to challenge these orders before they're executed. indeed, section 702 is designed right now to make them the last against potential government overreaching because the court is not given the authority to do a full lawfulness review of a section 702 directive unless a provider first initiates the challenge, but a decision by a provider to challenge must be made alone under acute time pressure with sensitivity to what's at stake with little context and while under a gag order. when providers do bring a challenge, trying to meaningfully litigate in an adversary way in the fisa court is an uphill battle. now, the rules for filings barely tested, logistics of
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handling classified documents are difficult, and documents in the court is like trying to get a letter to santa claus. it requires blind faith. the rulings come down the same way. when appearing before the court, the government regularly submits ex parte papers a provider can want read even if it's with a lawyer with the right clearance. this happened recently. my second case in the fisa court is a declaratory judgment action brought by five providers seeking the right to disclose the number of intelligence processes they received, just the numbers for each former process, and to oppose this, the government made a secret filing to justify why this causes harm, harm that outweighs the first amendment interest. they refuse to let counsel see the filing. as you imagine, it's hard to respond effectively to what you cannot read meaning even in the adversary proceedings, the court is still hearing only one side of the issue. in light of the issues, i think relying on providers who have to
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toil in secrecy and fight with the hands tied behind their back as the last check on the government is not ideal, which is why the creation of a special advocate, one with the same access to classified materials as the government, could make a real deference. as judge carr pointed out in the last hearings, judges make decisions after hearing both sides of the argument. that's the why the system is structured and what makes the decisions informed and legitimate. advocates help ensure the other side of the argument, not just in the extremely novel cases, but in bulk collection cases and other cases as well, the other side is represented, that the advocate weighs in on the novel issues coming up before the court and serve as a potential resource for providers who want to challenge compulsory processes. we need look no further than some of the odd lomingic and some of the recently declassified decisions to see what happens when the the court and the government work through the issues without any balancing input. even if the decisions wouldn't have come out any differently,
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even if the court heard from an advocate, adding an opposing voice gives the process more legitimacy and restore faith in the court's decision making. i look forward to further discussion of the special advocate and other issues related to the court. >> thank you. we'll start the questioning with judge. >> thank you. i surmise on the morning panel that the government swestles many outsiders commented are reasonably comfortable with the idea of the fifth court being able to call for and help them on particular novel issues of interpretation. i also think that judge carr and many other people who commented on the outside are suggesting to something that's more foreign or
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energetic to that, mainly, the body of outside counsel. i want to pin down a couple things, initially with judge carr, but certainly with other people's reactions too, and that would be if you had such a body of advocates with secure clearances on the outside, do you think that it should be entirely in the discretion of the fisa judge to decide when he or she wants that kind of help, and more specifically i think because judge carr raised the problem of appeal, and i think most of us whose experience is familiar with regular article 3, nothing meant by "regular", but article three courts, is that the appeal is very necessary part of the process. now, there have been constitutional questions raised by other people about whether or
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not apart from the provider, if he tried to give an appointed -- somebody appointed from a panel of secured lawyers, the right to appeal, you might run int constitutional objections, so i think those two basic questions about whether or not you lead the initiation of the appointment on such persons, mainly in the hands of the fisk judge and whether or not once that person was in and participated in the lower court proceedings, should that person, that advocate, whatever you call them, had -- can that advocate constitutionally be given some right of appeal? >> well, let me say to try to analogize. i did not think that an office that has an outside office review every single application is necessary. >> no. >> my thought is, how i envision
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this, is have a relatively small number of attorneys, something like a cj financial, criminal justice panel, who will, in time, gain experience because of their small number. completely wall-to million wall security clearance. ms. wald raisedded something i had not thought about, but by all means, that individual should have complete access to everything the court is hearing as the justice department prosecutor has, that there should be no withholding, no secret filing or whatever, and i actually have not thought about the constitutionality of being able to appeal, but that's one of the most important aspects of what i'm proposing because that would give the opportunity for further review by a three judge panel of foreign intelligence surveillance court of review, would give those three judges a
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chance to look at it again, and, ultimately, to secure a supreme court review, but i cannot answer your question about that. not sure i should as a judge in any event, but numtion, i don't- but nonetheless, i don't know. thinking about this further, i think that, under some circumstances, it should be necessary for the judge. don't let the judge have discretion. in other words, when this, what i call rule 11 notice is given, and i don't know if it would cover -- i think it would cover something like the prism program and so forth -- certainly the intent -- but also give the judge the option. you know, it's sort of two-handed so it's not just one rule, another notice comes in, that could be a trigger, but them the judge can retain discretion to reach out, but it would be a small group of lawyers, precleared, gain experience, and, again, i think use relatively infrequently or,
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perhaps, this just occurred to me, when a provider has an interest and provider wants to appeal, perhaps the provider could also request the court appoint an outside attorney -- >> i it could jump in on that for a moment, though. i undoubtedly would be one of those attorneys. i've been before the fisk twice, only to be before the review. i don't think it's enough. we talked about the questions whether there's the stand-in to appeal. the court believes they don't have the power to force executives to make classification decisions differently, so the executive is not beginning to provide the private counsel with the full access to the classified material that would be necessary, and, certainly, not on a historical basis. maybe for the particular case, but an advocate knows that two years ago, the solicitor general stood up and made a representation to the court, for example, as what happened in redirectives case, there's no data base of incidentally
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collected u.s. persons communication, and only an advocate who had been in several cases know the representations of government making it one case may be inconsistent in the representations made in another, so as much as in my business interest, i'd love for there to be a small group with exclusive rights practice before the court, i don't think it would satisfy the interest of really protecting the constitution because by definition, that group is going to be limited. i'd love for the special advocate to be able to bring the help of outside counsel on the type of panel described to bear op a particular case, but i think there has to be someone with an institutional interest that would look across multiple cases and be able to challenge the government's programs, not just in the one case that they may be admitted to practicing. >> thank you. >> do you have any comments? >> sure, i'll be brief. you're trying to balance, i think, speed and agility, and
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the ability of the government to move quickly without adding more processes, and the process was discussedded today. there's a lot of process. we add more theory under the proposals. another issue is intruding on the president's article 2 authority to an even more significant degree. everybody agreed, i think, when fisa was enacted this was what everyone was doing, this is what the act is all about, justified for a variety of reasons back then, you know, may be reasons to have it now, so -- but we have to be mindful that's what's happening, and i am worry the about delegating to others, whoever it may be, the authority to disclose information, classified information to yet another party. i also worry about having an outside panel, and i -- the concept of an advocate versus a case to case basis to talk about later, but main thing i worry about, frankly, is leaks of information. one of the things -- it is hard to prosecute a lease case, so
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the criminal sanction is there, but it's hard to actually use. something that everybody who's in the system has to deal with if they decide they want to leak something is the fact that they may lose their job. they have skin in the game. it's real. it's important to them. it's important to the families. they have to think long and hard about whether this issue is something i'm going to try to leak something about. because you can lose your security clearance if you leak, and they still can't prove -- you have a situation you can't prove the case. i'm worried about this at a variety of levels. >> if i could speak to that because it just occurred to me that it seems to me that first of all, perhaps you create the people as some sort of a small group, somehow federal employed and appointed like the federal public defender. more importantly, this just occurred to me as you were saying. there's never been a fisa leak with nip affiliated with the fisa office court as far as i'm aware, and then i'm not talking about a large number of people,
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but as importantly, a lawyer might be difficult to prosecute them, but it's not hard to take his license and livelihood were he to leak. that's something to cape in mind, and jim raised a bunch of the idea -- idea of a federal appointment. the more i think about the risk of losing a license, plus, the public shame and probably risk of being prosecuted, i think at some point, you have to have confidence in the people who pass these kinds of security clearances that they do the job their oath fines them to do and maintain classification. one -- i want to raise the question, and that's what is in response to the judge. i don't know. can congressman -- can congress mandate the classification for the outside counsel, whatever you call it, i mean, can congress include that and say that that person shall have the same access to all
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documents and information classified or not, that the government could? i don't know. that's another constitutional issue. >> exactly, yeah. >> if i just add to that -- >> yeah. >> i'm not an expert, but by and large in the classified information proceedures agent vetting in a criminal case, the government is not forced to disclose information to the defendant, but they can be forced to make a hard decision about whether to prosecute the person or -- >> right. >> the sanction may suffer for not disclosing information to the defendant may be dismiss sal of the case. i don't know how this works in this context, but at the end of the day, i think it is significant constitutional issue about whether you force the government to disclose classified information to somebody the president does not want to. >> in this analogy, would the -- the court would, in essence say, if you want to prosecute this person, you need to make this information available in this way. if you want your order, you need
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to make this -- i'm not going to rule on this until i'm sure that i've had outside to the story. >> yeah, you have to figure that out. >> the judge is sort of nodding his head. >> as a matter of fact, it does make sense, that condition, you want this order, well, we play with a level playing field, all cards up on the table. that may be the way around it. >> one quick question. there are two, i think, related ideas here. some talk both advocates. it's possible -- is it possible to have a hybrid of this? sometimes you would have the classified lawyers that sort the codray handful of people, precleared, ect.. the fisa court of review invited noncleared to comment on a
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question of law. is there any possibility that that could happen at the -- instance of first impression, when the application is first presented, that the the court could say all details are secret, but there is a question they participated in the classified context having to do with the law. you could have a hybrid of both of theet #* -- these. do you feel that, yes or no? >> i was trying to think, for instance, the prism program itself, fourth amendment issues, you or somebody this morning appointmented out the reasonableness clause of the fourth amendment. i think that may well be in play. i think smith is not particularly reliable basis. that was a pen register and so
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forth. my problem is i'm not -- somebody else mentioned -- i'm not sure you can so easily untangle the secret from the, quote, pure question of law. you may have a better grasp of that than i do. >> i have the same view. an example example in the 2008 case, the question was whether the lawfulness and constitutionality of the directive, the court relied heavily on the minnization and targtsing procedures to say procedures in place were sufficient to provide constitutional protection, the provider never got to see the minimization and targeting procedures, and had it not been for the leaks, it's not clear we would have ever seen them, so to argue even if you're in the case or without seeing some of the factual basis makes it very difficult to prevent an argument about whether the safeguards are sufficient. >> okay. >> thank you. >> thanks. >> because many of the circumstances that i have in mind, raise new and novel
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methods of collection whether it's -- i'm going to point to this because it's public, the prism idea itself, and so it's dpsh there's an intersection of the technology that keeps getting -- running ahead of the law in title three and everywhere else, and that's part of the problem too, but i'm not sure it's finely sliced. >> what you talked about there with the technological advances, what is your understanding of the fisk's current ability to use technical expert, technical consultants? is that something -- i think we've heard competing views as to whether or not they can already do that, does it do it, should it do it more, thinking about new technologies, or to try to avoid what we've heard to be a problem of miscommunications from
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technologists through to lawyers through to judges, so i ask the question whether there's already that capacity. >> well, keep in mind, i'm not in the government anymore, but i would say -- you put your finger on the important issue, this translation, the game of telephone where things are translated from technologists to lawyers to judges, and that is a real problem, a significant problem. my problem was if the court had a question, bring in any expert from the government to talk about any tech loming call issue that was required. just thinking about it, it seems to me that if the court wanted to bring in an expert from the outside, perhaps from a company mark's talking about, i don't see any reason why that could not be made to happen, if they wanted to speak to someone connecting wires together through machines and things like that. i don't see that as being something not possible to do. you have to bring in somebody
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with a clearance, what questions you expose the person to, what kind of information. there's be some security issues around that, i can see, but i dote see that as being something that shouldn't be possible. >> nip else want to opine on that? >> if i can say, well, first, and, again, i don't know back in 2002, part of my experience and be told about what now is outdated as the flip phone or car phone, technologically, and i can recall one instance where we had the opportunity, and we took it, be informed about a particular kind of activity, obviously, can't go into detail, but i'm quite comfortable with the idea to reach within the government, and i don't see why we couldn't reach outside the government.
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to get to what you're talking about. >> when y'all were discussing the possible analogy, i wanted to follow up on that briefly because the government at the end of the day has the ability not to bring criminal charges. there may be other alternatives for the government to pursue such an immigration consequence, png, envision a variety of things that the government can do, and you're talking about a situation where you identified who you believe to be the wrongdoer. does the analogy hold if you are talking about the fisa court where you have a hybrid preventative mission of many of the authorities as well as an investigative if the question makes sense. it strikes me it may not be the truest analogy situation. >> i just -- i have a thought -- i just brought up the example here, but i am worried about the
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president forced to disclose information and what happens if he doesn't. that's a big issue. i don't know the answer today, but i think that raises real concerns. >> and -- >> and for the president to give up the ability to obtain some type of otherwise lawfully authorized stach torely approved type collection consistent with the fourth amendment, you have to persuade the judges about that. i don't know. i don't know. it's a real hard issue. >> and, again, i have not thought about it until seven or eight minutes ago, but it seems to me as a judge that we would, part of the ordinary process, say, look, i have questions. i would call -- call one of the attorneys saying i have a problem with this. it does seem to me -- i have the ultimate authority. they have to give what i ask them to give me if p if i want
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approval. it's my understanding, also, that if i turn them down they can't show up next week to the next person. they have to come back to the same judge that turned them down. >> or appeal. >> absolutely. it bears looking into by people who thought about it and will think about it more than i have this afternoon about the idea. look, if you had this -- i'll call it independent counsel, okay, rather than special advocate because that has a different connotation, but my small codray, and if i say, i want that person to have all the information you have, mr. baker, then he has a choice. he can say, judge, okay, we'll appeal and find out if you can do that, which may be the way to go, and, i mean, that's the way we do things as judge wald knows. you don't like what i do?
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find three appellate judges, they'll tell me. >> one of the comments raised for me, though, the role of the fisa court as approver opposed to resolving an adversary dispute, judge carr said his time was there was not the adversary role for the court or bulk collection decisions so seeking approval from the court, he had the right to contact anybody he wanted and government can ask for information. as being in that role, i find the ex parte contacts very difficult to deal with and overcome. the fact that the same judge who may have been involved in deciding that the bulk collection is lawful them assigned to the case to decide whether there's an adversary challenge, i mean, it's not a different pool of judges. it's not a imagine strait issuing a search warrant and united states district court judge deciding suppression. to go in front of the same pool of judges who have an approval role and adjudicated role and
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ability to call op ex parte contacts to get information from the government may be different in adversary proceedings than in approval of a surveillance proceedings. >> well, on the other hand, when the prism application came in, the subsequent application, in all likelihood, does not go before the same judge, and that judge had the independent authority to decide whether or not they could be approvalled. there's another process. it doesn't return to the same judge because on rotation, the 90-day expirations or whenever, once in a while i got something i had a year or two before, but it was very rare that i got the sequential, and i don't think it would be necessary in that situation where you go in for reniewfl or something to find the same judge. in fact, i think it would not be. >> the point is more that the judges play two different roles: they are working with the government, the executive branch
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to prove surveillance or come back, you have not answered this or need expertise on that, and they work on the process of approval. they are also the same judge, the same court that listens to an adversary dispute when a provider wants to bring a challenge, or if we create some sort of additional advocate to bring a challenge, we have to talk about the court's dual role and how to sort that out, i think. >> i use that term dlictly because i don't see the difference between what i did as a judge on the fisk and whether it's a magistrate issuing the search warrant or issues title 3's. maybe the word "approve," process and review is the same, and in that situation, i'm often the judge who winds up hearing the suppression motion, and the law is clear that i can do that. i don't see much distinction between that. in fact, i don't see any between the judge's job as a fisk judge
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and as an article 3 judge or article 1 # judge magistrate many issuing search warrants and orders. >> thank you. >> i'd like to -- i'd like to switch gears from the adversary process to transparency on the subject of the other recommendations. these questions are directed to jim and judge carr. how feasible is it for fisk judges to write opinions in the first instance with an eye towards declassification or redacs later? assuming for a moment we talk about perspectively versus retrospectively. is this a complicated matter, easy, can it be done? what do you think? >> first, let me say it was my experience, i don't know about the other judges with whom i served or judges today, writing an opinion, as we ordinarily understand that, is a very up usual event because once again,
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you know, it's like with an ordinary search warrant, you don't write an opinion. you look at it. if there's probable cause, you issue it, title 3 order, you issue it, and fisa order. in the writing -- >> in the up usual circumstances. >> again, when a judge -- part of my -- when a judge feels a need to write the opinion -- and it's often triggered by the notice from the government that there's something going on that's unusual, and by the work of the legal advisers. they, too, alert us to issues that call for further consideration and reflection. i don't remember the number of, quote, opinions -- maybe a few pages a several pages a wrote, but it was a handful. part of it is thinking about transparency. it is not like app ordinary court with ordinary cases where day in and day out you write opinions. >> right. i'm trying to figure out where
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there is an opinion, how easy is it to -- you don't want a redacted opinion nonsensical because of redactions. how easy is it to write to be understood later in some way in unclassified form in >> for example, in the first court of review decision from 2002, i think it was, that clearly was written -- clearly written by the judges to publish it because they boiled down the classified stuff into a couple of different very small sections, and so that the legal analysis and historical background and so on and so forth, they were able to put forward in a way that madeceps. it was not, like, a piece of swiss cheese. you understood the lomingic and everything going on and classified stuff. it was cop sice. >> just talking about the wald case? >> yeah, exactly, yeah. >> how -- that case clearly -- participation was feasible; right? there was an opinion that was
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public. there was something about that case that lent itself to public participation and publication thereafter. how translatable is that more broadly? i mean, -- >> well, if the court knows -- so if you were to have app agent of congress that said to the extent practical, opinions shall be published or in a form readily published or something like that, if they were sort of forcedded to do it, basically. i think they could do it in many instances. there's some instances where it's challenging. some of the technical ones where the facts of the case are interwoven with the legal analysis. that's harder. the review decision, it was a megalegal issue. there were a couple cases that were at play, but it really was not a factual or heavily technical kind of issue, but a pure legal issue, but -- my guess would be if the court had that idea, it had to do that. another option could be that the court shall release an
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unclassified summary of the key rulings of a case or something like that, like head notes or something. >> well let me ask you about that because we heard from another judge that he would rather not see summaries because a summary is not always a full picture of what the. would say, and in that, it's preferable. is there a view about that, up classified summary versus redacted of the opinion. which is better? >> understanding that no two judges might agree on whatever review i have thinking about this for the first time. again, it all depends. what is the issue? does it really involve something that's classified or simply, i mean, can you recast it in a way? i think it's impossible to predict an advance how difficult or easy it might be; however, were there a default or
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likelihood at some point of publication of part of all the decision, and them, certainly, the judge could go into writing whatever he or she wrote with that in mind, and perhaps deliberately compartmentalize, write the. with an eye to that, but to try to tell you would it be easy or difficult, it depends on the particular issue and the setting at which it came up. it might be easy or almost impossible. >> again, i like jim's idea of a summary, you know? without further details, this is the issue of law, and we have approved -- i have approved this, or if the court sets on bond, and i don't know that it has, but it has that authority, which i think is very worthwhile, but i can't really answer the question directly, and i'm sorry. >> if i could add, seems to me you're trying to find balance here between disclosing -- unnecessarily disclosing classified information that
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would harm us and providing adequate transparency so people understand what's going on and have confidence in the system. the summary is like a balancing type thing. on the one hand, you don't want no transparency, and on the other hand, you don't want tv cameras in the courtroom; right? it's app option. what might make sense is, you know, sort of a couple options for the court to pursue or have available to give transparency to figure out which is the best fit in a particular case. >> i have a question for each of the panelists which is what is the role of the outside person whether they are an advocate or attorney or whatever. when they appear before the court, and sort of two questions. one is is there charge to oppose everything the government proposes, and then, secondly, how do they evaluate, assuming they engauge with the government, how do they evaluate what arguments to make? their statutory arguments, constitutional argument, factual
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arguments, and who guides them in making the decisions they make in a case? starting with mark and go on down. >> i don't think they should oppose everything the government seeks. i think that's -- the goal of this is not to make it harder for the government to protect the country. the goal is to make is simple for the government to protect the country, respect the constitution, and have somebody on the other side what the constitutional balance is versus pure needs for security or surveillance, and they lose celt before the court if they are just opposing everything opposed to getting across the message when this is important. as to how to decide what cases to get involved in and what arguments to bring, you know, i think that those who occupy the office would play a large role in figuring that out, but it occurs to me novelty is one thing. that's there, bulk collection, even if -- >> i want to -- i want to focus op when they get involved, what positions they should take once involved. again, do they argue -- go right
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to the constitution? argue statutory, noncompliance? lawyers strategize. >> right. >> they strategize based on who the client is. how does this particular person make those decisions? >> right. so to try to get at that short answer, i think you got it right as to who the client is. if they view the client as, you know, either american public or in some cases, you know, the human race with an interest in sort of human dignity and privacy in the communications, the client is to offer perspectives of those individuals who can't be there to speak for themselves as to whether the surveillances is necessary, and that could be both statutory and constitutional. hard to say how they choose between them, but they are empowered to make them both, statutory, noncompliance, and constitutional problems. >> yeah. certainly, i think that they would have the authority and
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ability to make whatever argument they thought appropriate just like a lawyer does in any other instance, whether it's in a trial court or appellate court. the lawyer would be able to make whatever arguments he or she thought is plausible, credible, and perhaps successful in a unique situation calling appointments to the court's attention that the government suspect and it thinks that that lawyer thinks would be worthwhile, but you raise an interesting thought. that is, and i think it -- the system i'm trying to propose could enable this. lawyers often, when cop fronted with new or difficult issues, talk to other lawyers and get their input. well, what do you do you think? that's a natural source a lawyer would go. i think this is a bit more elaborate the further we talk, but on the other hand, within the confines of what i'm suggesting, i think you could
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also enable that this small group like a small public defender's office, they talk amongst themselves, privileged, they don't have to disclose it. you bounce ideas off. that's important in an area where -- i mean, part of the problem is when these issues come up in front, nobody's been there before. you don't have precedence. you have to think things through in a seminar kind of way. that's a way lawyers -- i'm sure mark does that with his clients and others in the office. what do you think? i mean, that's how it's owned. again, i don't think we can prescribe a template for you on how it occurs, but, again, i view that lawyer would have as much opportunity to raise whatever arguments the lawyer thought were appropriate as the government in terms of access to classified information, and now that i think about it, at lowe's within the small group, talking amongst themselveses and sort of jointly coming up with how they go about representing, and,
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finally, the question you asked, no, i don't think that lawyer would be calledded upon to dream up arguments just to dream up arguments in opposition. well, you know, we have no opposition to voice to the government's requests. end of discussion. >> as i mentioned, i'll be brief, there's a lot of associations made with this type of function, office, whatever you call it, but if anything, the one thing you would want to do is make it clear to the american people that this office is independent and can decide whatever legal position itment wants to take in any matter. oppose the government, it can do so, no objection, whatever. the constitutional issues, statutory issues, factual issues, whatever. leave it up to the people in that office or whoever's going to be to decide what approach to take. they have to be independent. >> thanks. we have time it -- we have time for another brief
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round starting with judge wald. >> sorry, i got one question. i'm returning to the appeal question. i recognize some of you have had the chance to rearming or wish to comment, but i want to raise the question. we talked about the fact that the fisa court is a unique animal. i mean, i think it's thought of or conceptualists thought of it as an article 3 court, but as pointed out, there's auxiliary weather preventative or approval kind of functions. there's a formal article 3 judge that i think i share with judge carr. the problem is that this court, inevitably, must and has pronapsed on constitutional questions questions of statutory
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interpretation, which, i think, inevitably become part of the -- to the extent they are disclosed -- have to be part of our jurisprudence. i think the appeal question is so important to me because not only, i think, some of the fisk com has, you know, opined on it, there may be constitutional questions, so is the congressional research service. they are applying, you know, an absolutely typical traditional article 3 standing in a situation where the cour is deciding article 3 questions, but in its original conception, it's devoid of one of the most important parts of article 3 courts, namely people who have an interest in the proceedings not being able to have any voice. for good reason, i understand
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the secrecy involved in national security, but i guess i'm trying to pick your brains if there's any way to kind of solve that question because to leave these -- the highest form of jurisprudence, namely constitutional questions, sometimes questions of statutory construction at a point where they can't be availed of the process which every other part of federal gurs prudence has, namely, you know, upwards here, even to the fifth, the ficsr kind of thing. some people suggested a kind of certification, but that had its opponents too. you think you can't do that constitutionally. do you have any positive thoughts? >> i'll take a shot at it. >> okay. >> i hate to go back to the 2008 review decision, but they argued there was not standing for the providers to challenge, and the court rules since fourth amendment rights were at stake, the question of whether the
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provider could litigate those on behalf of users was a prudential standing doctrine, not a constitutional standing doctrine. >> yeah. >> and congress could waive the doctrine, and it had done that by putting in a standing provision for providers in section 702. i don't see it as insur mountable if there's fourth amendment rights with standing, and someone else can litigate that issue on their behalf, it's a prudential question that congress can waive, not a strict constitutional one. that's my interpretation of that decision in my offer of help. ..
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>> for good reason it could not become if there were
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terrorists. >> the more serious and and is a question cannot court play any role in overseeing the article to activity? the executive and that courts have agreed pfizer is a good thing but we'd want to push it but maybe fairly radical changes keep in mind all it would take is an executive to say we don't go warm all along with this with the of the fisa court and the supreme court might say the whole structure collapses. who knows? that has never been.
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>> referring to section 700 tueber also 215 about what the court could do and we should not think of them as a super inspector general with free range oversight of the intelligence community and its certificates constitutional issues sam practical issues. the court is not supposed to the judges are not trained it plays a different role. i try to set expectations in a realistic way with the american people you can reasonably expect the court to do. the same applies to congress. what can they reasonably be expected with oversight of
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these agencies? in my opinion is primarily the responsibility of the president of united states to conduct effective management control of oversight of the intelligence community is what i was trying to drive that. if you go back to 702 you have the court approving procedures certification, and not engaging in review of individual determinations then after the fact review i faked -- i thank you have gone too far. >> i have no other questions >> i appreciate the witnesses. >> also with the invitation you gave us to talk about the legal adviser a and what role they play because there is definitely a sense no
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offense having been a law clerk but their junior attorneys deny wonder if you will talk about who the legal advisers actually are and what role they serve? >> when i started in the court 2002 there was one legal adviser there was four or five when i left. they are neither law clerks nor magistrates. it is a unique role that they perform. i think i can speak for herself when i say i right petraeus of electronic surveillance i know more but they know more about national security law law, pfizer law, the workings of the individuals is any judge and we rely on them to assistance to make decisions. but the for example, by pfizer role they get seven
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days before we get the application called their read copy. jim will confirm there's a lot of push back from the legal and pfizer's and oipr and there is a lot of push back between oipr and the agency's progress if they present junk we lose confidence that it will be more difficult unless they are straight up. but the legal advisers and not infrequently i would come in and have x number of cases on my doctorate -- that number grew substantially than they would say these are off the rocket in other words, would not be formally presented to me for review because of the interaction between the legal divisor's
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and a the oipr attorneys and agencies to call them directly with questions and problems. that was a core part of the job to rigorously vetting the applications. one of the things that should be considered is the instances in which an application is submitted for review by legal advisor but never presented to a fisc judge for consideration those should be registered registered, recorded, publis hed. because i think is in a large percentage? no. but fairly regular cases, of stock it. >> or maybe they come off completely or postponed another week as they try to resolve this.
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>> i don't think it would be difficult to give every reid copy of number then when it comes off pocket and never comes back and they decide not to present and i assume that happens with the push back then that shows the rate of rejection in terms of the overall operation is hire them the simple turn down by a judge. but to say these are law clerks they occupy a unique role and we have great confidence in them and they work for the court in a very important way to help insure that we make the decision and write a memorandum for us about some aspect errant these are not to page search
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warrant applications they could be 50 or 60 pages. every lengthy and thorough as title three. i would call the oipr attorney can you give me this or that? occasionally i would have hearings to question the agency and a fellow player under oath, always on the record even though it is never public and i make a finding. i would determine my questions have been answered. >> thank you. all three of you for being here today. appreciate we're attempting to educate ourselves partly to educate other people who might think about this so i appreciate the time and thought you put into your ince answers. >> speaking of myself if there are other questions the agency has feel free and we will answer them.
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>> i want to follow up the from this morning we did not get a full answer which is going back to the assad metadata collection of program with the discussion if there is a requirement that the government submits to the fisc sova phone number is no a selector and here is the paper trail basis on what was established what does the court do with that? to think the court could do something useful orate eight checked on the system or overwhelm the court? and. >> i don't see how it would overwhelm the court you just
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have the xl spreadsheets said wright said date, time, that kinda stuff then submit on a regular basis. that is the real issues and i would imagine the court wouldn't look for patterns to see if things were going along an a way that was consistent with their thinking when they approved this thing then it is an additional check. i don't see that as that onerous as the additional obligation to do think it is useful for the court to have additional transparency. it seems like it would give the american people additional confidence that is what is going on the legitimate and appropriate. >> first of all, the analogy is for the periodic progress report all articles three judges get the wiretap. is all into record. experts say are you getting
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anything? i make him to renew titles three caused so it does seem what they would be familiar with to performing in a similar way but in order to be useful, you have to go back to the particular judge , would never the order was, the 250 and e yes, that gave the original authority rather than whenever judge happens to be there that week. but i suppose in time you need to develop familiarity to have the reasonable suspicion in this context cement there was some discussion about the back-and-forth between the courts and the lawyers in
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the government. is there cause i adversarial process with the fisc? kid you talk to that? >> it depends on what type of application with the fbi or nsa in the field office office, a review of the fbi headquarters, a justice department, then coach souza fisc obviously there is no field some -- field office but the review and the meticulousness and the care is substantial. there is a lot of dialogue back and forth between every level. back and forth between fbi headquarters in the field and doj end nsa and a huge amount of back and forth. i always took as a huge
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amount of responsibility to maintain the credibility of the justice department so they were transparent so the court knew they cared deeply about the accuracy so when they made mistakes we brought them to the attention of the court. so the justice department is doing its job executing its responsibilities under the constitution into seed they are faithfully executed a and we will do our best. if we think the agency hasn't met the standard then they tell them xyz. so's this system will has worked extremely well so far but it is painful that some percentage of the population doesn't think that so we
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need to take that seriously and how to deal with that. that is your job. [laughter] >> interest to keep time one question. facility outside party advocate we may have ruled with compliance review but what would that be and how does that play out? >> id my thinking about it, many times noncompliance know this is straightforward and simple but if you had something more complex and want to be sure that the problem had been identified and a drastic and would not recur at the very least the fis a judge would have the opportunity to have this independent counsel
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participate in the adversary mode with the government prosecutor to conduct a hearing like we do with the suppression hearing and make a decision. one would hope the decision ultimately would be okay, they're not as bad as they looked it is good faith and has been fixed but i do think there of would be a role for the attorneys to participate in the process from time to time. >> is not a career for somebody in an agency to make a mistake and get a wrong. with a young magistrates and i grew up politically in the '60s with apprehensions with
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the fis the secret court in what has impressed me from them -- dave number one and all my activities of the fis support the people kudu this work want to get a ride not just the lawyers in the justice department but the agents of the field. i know at least the fbi and frequent occasion was not happy with them because they were not going forward to present something the bureau very much wanted it to. it is not an adversary relationship that was not hand in glove when i was on the court we did not get the sense they presented anything the agency wanted. >> remedied careful using the independence of this office to go too far that could be captured by executive branch activity there needs to be an adversary in the process
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although whistles -- sells a pair of brilliant but that person should have independence it should not play too many roles so they could challenge and convey that to the american public. >> thank you panel for giving us inside operations into fisc. >> one thing that occurred to me this morning before the senate judiciary committee, let's all keep in mind what a remarkable country we live been to have this kind of conversation about these issues and what institution we have with the fisc can you imagine this conversation occurring anywhere else in the world? we should keep that in mind and take pride in that. >> thank you. [inaudible conversations]
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[inaudible conversations]
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>> we will be starting the final panel that involves academics and a former member of congress we are pleased to be joined by jane harman president and ceo of the woodrow wilson center in death former member of congress and a research professor from george washington university law school and stephanie from escapees strategies and former house judiciary committee counsel and prosecutor. professor of computer science and director for insurance and securities and professor of law for a scholarship at american university washington college of law. each are free to make a brief statement then we will do another round of five minute questioning.
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ms. harman? >> by apologies for being a few minutes late to. i consider myself one of your grandmother's for our principal co-author of the intelligence reform law of 2004 that established you and one of the tragedies history will record you're not fully functioning and tell me 2013 that is about eight and a half years lost a very critical mission. let me just say that goal of the law personally was to have a group inside to make certain privacy and security or liberty and security were reinforcing values of but reestablished under the law. if ever that function were needed, it is right now. it is unfortunate you for
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one of the best kept secrets in washington and i know you make an effort to get out there and i commend you for it but i think the need is urgent and you uniquely looking at policies and practices are in a position to make sure from the inside reid to the right thing. to other points. one. i was in berlin germany one week ago today for a dinner of top policy types sam business people all of whom who were shocked and horrified by the revelations in the european newspapers. when i told them there was privacy board in there was testifying fail booked stunned and said that is
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wonderful, i hope that a group like that will also be in touch with foreign governments. but that might be interesting tuesday to about connecting to those folks for ways to look dash up practices and procedures of different countries and i would offer my own up but our government needs crisis management won a one. as a recovering politician is same as when bad stuff comes your way and to use of guide davis noted has taken stuff from the government government, let you get ahead of it and to figure out of frame and a context to talk about what else could cover about a and it
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is free if rise for someone who's spent 17 years in congress with some crisis management function could be helpful of with a very pro -- robust and know if my eight dustman the bow me as qualified but i passionately hope that things turn out well for our country that we have security and liberty to look forward to. >> professor? >> 84 evade invitation to testify. of the fisa statute is premised on the search warrant model putting article three judges in that position to evaluate search warrant applications that model is now working because it is premised on the judge serving the a ministerial function when reviews that
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application that the judge looks for probable cause but is not trying to do a comprehensive review whether the statute is applied correctly, how it should be interpreted in what the constitutional implications might be with the warrant issued. that does not work in the high-technology area because it changes to quickly. judges are being asked to resolve difficult issues of interpretation that they are not equipped to answer in the context of the export applications such as a search warrant a and as the proposals discussed earlier is the way it could be restructured to make warrants to that model and encouraging disclosure of the interpretation is another approach and both of those are interesting and important ideas how to
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reform a the act to deal with new technologies. one that has been discussed come out one approach is the certainty and then if they expire to put the burden on the everett. sunset provisions of ritually designed to have after the power testing but today in light of new technologies is a way to ensure thick covering can it or actually house to go back to congress to seek approval for new appropriation with tough boss so closing this with the additional savings is an important step. what the has the ben
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suggested is that you maybe five of the earlier and context when interpreting a criminal statute judges should interpret the near where interpretation that means at their bottom has a broader interpretation they have to have it enacted with the idea of the law is up to congress not to court. a role for surveillance law has a similar function. if the government goes to the fis accord if it is a close call then it should be to reject the interpretation telling did executive-branch they have to go to congress to get their approval for that interpretation. this would force the executive branch to go to congress not to do try to seek approval of new programs from courts poorly
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equipped to analyze the especially involving the desirability of these programs. effectively that sunset provision working together with disclosure would force the executive branch to keep going back to congress as technology changes whether to approve or disapprove any new surveillance programs. thank-you. >> thinking to the members of the board inviting me to testify today. it is an honor. putting on my hat as a former congressional staff member of a bite to raise transparency points that i think relate to the discussions of the earlier panel's. we heard prior the idea that fisc having a mechanism to seek review of the outside technical experts.
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that is an excellent idea but equally important resource for staff members and members of committees. in my experience working on reform with the electronic communications privacy act not done under is essentially working with classified information, at myself and my colleagues for able to contact outside experts those who worked intel a commission industries for decades in order to give you all of current technology and its capabilities stand wear it is going in the future. . .
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